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GOVERNMENT DECREE No

GOVERNMENT DECREE No.98-CP OF DECEMBER 27, 1995 ON THE IMPLEMENTATION OF THE ORDINANCE ON THE EXPLOITATION AND PROTECTION OF HYDRAULIC WORKS

THE GOVERNMENT

Pursuant to the Law on Organization of the Government of September 30, 1992;

Pursuant to the Ordinance on the Exploitation and Protection of hydraulic works of August 31, 1994;

At the proposal of the Minister of Agriculture and Rural Development,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.- The Ordinance on the exploitation and protection of hydraulic works is applicable to the following hydraulic works and activities:

1. The hydraulic works which have been completed and put into operation;

2. The parts of the hydraulic works under construction which have been completed and put into operation.

3. The wells and water pipes in service of irrigation and drainage;

4. The supply of water from the system of hydraulic works for the urban areas , the population centers, industrial areas and the drainage of water from these areas into the system of hydraulic works;

5. The regulation of water and other activities aimed at ensuring safety for the hydraulic works of the hydro-electric power stations.

Article 2.- The encouragement of the water user households and organizations and individuals to contribute to the strengthening protection and development of the system of hydraulic works shall be provided for in the Government policy of investment in water conservancy.

Article 3.- The hydraulic fee, the handling of administrative violations, the organization and activities of the specialized inspection agencies in the domain of water conservancy shall comply with a specific regulation of the Government.

Article 4.- The People's Committees at all levels shall base themselves on the Ordinance on the exploitation and protection of hydaulic works and the Ordinance on the duty of public utility labor, to work out their plans for mobilizing labor to protect and strengthen the system of hydraulic works in their localities.

Chapter II

EXPLOITATION OF HYDRAULIC WORKS

Article 5.- The exploitation and protection of the hydraulic works shall be implemented according to each system of hydraulic works. In the areas of small and scattered hydraulic works the exploitation and protection shall be done according to each project. A common company for the exploitation of the hydraulic works shall be set up in these areas.

Article 6.- The setting up of a company for the exploitation of hydraulic works is provided for as follows:

1. The Prime Minister shall decide which company to directly exploit the systems of hydraulic works of national importance.

2. The Minister of Agriculture and Rural Development shall decide which companies to directly exploit the systems of hydraulic works related to many branches and provinces.

3. The Minister in charge of the service which is the investor of the project shall given written approval to a company to directly exploit the systems of hydraulic works not related to many branches or provinces and the President of the People's committee of the province or city directly under the central government where the project is located shall decide the setting up.

The process and procedures for setting up the company shall abide by the prescription of the Law on State Enterprises and other related legislations.

Article 7.- The tasks of the company for the exploitation of hydraulic works provided for in Article 15 of the Ordinance on the exploitation and protection of hydraulic works are concretized as follows:

1. To draw up and carry out the plans for repair of the works, the use of water, prevention and fight against water logging, droughts and natural calamities, improvement of the soil, prevention and treatment of pollution in order to preserve and protect the water environment and the ecology;

2. To follow up the carrying out of the plan and the feasibility project already approved, to detect in time the deviations from the planning and the wrong choice of the investment object and report them to the People's Committee of the province and city directly under the Central Government and the Ministry of Agriculture and Rural Development for settlement.

3. To be the investor in the project of repair, supplement and perfection of the systems of hydraulic works under the management and exploitation of the company;

4. To carry out the regulations on the maintenance of the projects; to inspect, follow and detect in time the imminent dangers to the safety of the works; when it detects the danger to the safety of a project it shall have to settle it immediately and report to the local People's Committee and the Ministry of Agriculture and Rural Development for settlement.

5. To regularly supplement and perfect the process of operating the system of projects and each project, especially the operation of the water reservoir, and submit the plan for approval as prescribed by the Minister of Agriculture and Rural Development and to organize its implementation;

6. To survey, monitor and collect the data on meteorology, hydrology and the quality of water, the evolution of the state of the projects; water logging and drought, the effect of soil improvement and the productivity of the crops. When the natural conditions and operating conditions of the project vary with the documents and the design, the company shall propose in time the remedial measures and submit them to the People's Committee in the province or city directly under the Central Government and the Ministry of Agriculture and Rural Development for settlement.

7. To keep the technical files and history of the project and the documents collected annually. To sum up the experiences in order to raise the efficiency of the exploitation and protection of the hydaulic work.

Article 8.- The company exploiting a hydraulic work has the rights defined at Article 16 of the Ordinance on the exploitation and protection of hydraulic works which are further concretized as follows:

1. It shall be supplied with managerial equipment and working means, is entitled to carry out integrated exploitation of the utility of the hydraulic work according to the permit issued as defined in Article 20 of this Decree;

2. It is entitled to use public utility labor as prescribed by law to repair, protect and develop the system of hydraulic works;

3. To propose to the People's Committee in the province and city directly the Central Government and the Ministry of Agriculture and Rural Development to readjust and supplement the plan for the system of hydraulic works directly exploited and protected by the Company;

4. To propose to the People's Committee at all levels in the localities where the hydraulic work is located to carry out the technical plan and concrete measures worked out by the company aimed at ensuring the safety of the project in the event of an imminent incident.

Article 9.- The water using household has the rights and obligations defined at Article 17 of the Ordinance on the exploitation and Protection of hydraulic work which are further concretized as follows:

1. Within the limit of its cultivation areas, the water using household has the responsibility to reinforce and upgrade the field boundaries and canals and irrigation and drainage ditches, ensure the economical and efficient use of water and also has the responsibility to protect and contribute to the repair of the system of hydraulic works which benefit the water using household.

2. In case of natural calamities or an incident causing damage to the hydraulic work the People's Committee of the province or city directly under the Central Government shall consider for exemption or reduction of hydraulic fees for the water using household according to the policy of the State;

3. It is entitled to take part in the meetings of the water using households and send representatives to take part in the Managing Council of the system of hydraulic works, suggest plans and measures to exploit and protect the system of hydraulic works.

4. It is entitled to carry out integrated exploitation of the utility of the hydraulic work according to the permit already issued as stipulated at Article 20 of this Decree.

In case the integrated exploitation requires the construction of suplementation works the water using households which enjoy direct benefits from this construction have the responsibility to make financial contribution to the construction

Chapter III

PROTECTION OF HYDRAULIC WORKS

Article 10.- The company exploiting the hydraulic work shall base itself on the prescription of law and the technicaldossier and the characteristics of the project in the system to draw up the plan for the protection of the work and submit it to the People's Committee or city directly under the Central Government and the Ministry of Agriculture and Rural Development for approval; plant the marker post, build the protection fence and post up the protection rules, erect a signboard or an off-limit board to directly protect the machinery, equipment and workshops of the hydraulic work.

The managerial agency of the electric service shall carry out the task of protecting the hydro-electric power station in the same way as with regard to the hydraulic work mentioned above.

The expenditures for the protection expenditures shall be deducted from the capital construction fund for the newly constructed projects or from the operating fund of the projects under exploitation.

Article 11.- The People's Committees at all levels shall carry out the plan of protection already approved for the hydraulic works in their localities. The responsibility for this work is assigned as follows:

1. The plan for protection of the hydraulic work in service of a commune, ward or township shall be carried out by the local People's Committee;

communes in a district or town shall be carried out by the People's committee of that district or town of by the People's Committee of the commune, ward or township where the project is located with the authorization of the People's Committee of the district of town.

3. The plan for the protection of a hydraulic work catering for many districts or towns in a province or a city directly under the Central Government shall be carried out by the People's Committee of the province or city or by the People's Committee of the district or town where the hydraulic work is located with authorization from the People's Committee of the concerned province or city.

4. If the system of hydraulic works caters for many provinces and cities directly under the Central Government, its protection shall be carried out on the principle that the province of city where the hydraulic work is located.

5. With regard to a hydraulic work of national importance, the ministry in charge of the project shall preside over and cooperate with the Ministry of Interior and the Ministry of Defense and the concerned ministries and services in working out the protection plan and submit it to the Prime Minister for decision.

Article 12.- The company exploiting a hydraulic work (or the investor of its construction) shall draw up the plan for utilization of the land within the protection area of the hydraulic work and submit it to the People's committee of the province or city directly under the Central Government and the Ministry of Agriculture and Rural Development for approval. The plan for land use must ensure these requirements:

1. It must afford passageways for survey and monitoring and a level ground to handle incidents, if any;

2. For a canal it must have a level ground for the deposition of mud and sand, a drainage ditch for dredging and for fillings to regularly strengthen the canal wall and repair it whenever a break or landslide occurs. For am irrigation-cum-drainage canal, it must ensure the requirements of both the irrigation canal and the drainage canal.

3. For a water reservoir it must ensure safety for the population living around the reservoir during the flood season; the cultivation of crops and the exploitation of natural resources must not cause erosion or sedimentation at the reservoir bed.

Article 13.- For an irrigation canal with a flow of less than 2m3/s and for a drainage canal with a flow of less than 10m3/s the banks and walls of the canal must be strengthened and protected according to the design criteria (TCVN 4118-85);

For the canals passing through high grounds and without canal walls the he width of the canal surface shall be determined according to the canal design criteria (TCVN 4118-85) and the protection area shall extend from the outer border of the canal;

For the canals which have been reinforced with concrete or masonry the company exploiting the hydraulic work shall base itself on the need for protection and exploitation of the work to determine the protection area and submit the plan to the People's Committee or city directly under the Central Government and the Ministry of Agriculture and Rural Development for decision.

Article 14.- If the necessity arises to build houses or other constructions within the protection area of the hydraulic work after the issue of this Decree, such construction must not affect the safety of the project; the investor must have a technical design plan and must have the written consent of the company exploiting the hydraulic work and the permission of the President of the People's Committee of the province or city directly under the Central Government. For the hydraulic works of national importance, the construction of houses and other installations within the protection area must be submitted to the Minister of Agriculture and Rural Development for consideration and to the Prime Minister for decision.

Article 15.- Within the protection area of the hydraulic work as stipulated at Article 27 of the Decree on the exploitation and protection of hydraulic works and the protection area of the canal already approved by the Ministry of Agriculture and Rural Development and the People's Committee of the province of city directly under the Central Government, any house or other construction including those built prior to the issue of this Decree shall be subject to consideration and handling according to the following regulations:

1. If the house or other installations already built within the protection area of the hydraulic work directly infringe upon the hydraulic work, it must be dismantled or moved to another place and the hydraulic work must be reinforced, repaired and ensured safety according to the design. If these are very necessary constructions, their continued utilization must have the permission of the Prime Minister but they must be technically handled in order to ensure safety for the hydraulic work.

2. If the house or other constructions built within the protection area of the hydraulic work do not directly infringe upon the hydraulic work, then, depending on the extent of its possible impact on the hydraulic work, it may be dismantled and moved to another place or allowed for continued utilization but must be reinforced and handled technically at the request of the Ministry of Agriculture and Rural Development.

Article 16.- The People's Committees in the provinces and cities directly under the Central Government shall base themselves on this Decree and other related legislations and the regulations of the Ministry of Agriculture and Rural Development to consider whether to order the dismantlement and removal or to allow the continued utilization of the houses and other installations which have been set up within the protection area of the hydraulic work in their localities and apply the suitable policy with regard to each specific case according to current regulations.

Chapter IV

STATE MANAGEMENT OF THE EXPLOITATION AND PROTECTION OF HYDRAULIC WORKS

Article 17.- The Government shall determine the strategic orientation and the plan for development and issue policies regarding the exploitation and protection of the hydraulic works; it shall define the functions, tasks, and powers of the services and levels of administration and shall control and inspect these services and levels in the exploitation and protection of the hydraulic works.

Article 18.- State managerial responsibility of the Ministry of Agriculture and Rural Development:

- To exercise unified State management of the elaboration and implementation of the planning, plan and investment projects for supplementing, perfecting and upgrading the system of hydraulic works throughout the country;

- To submit to the Government for approval and to guide the implementation of the planning, plan and investment projects for supplementing, perfecting and upgrading the important systems of hydraulic works related to many services and localities; to ratify or approve in writing for the People's Committees in the provinces and cities directly under the Central Government to ratify the systems of hydraulic works already assigned for management according to the current regulations on capital construction;

- To issue and guide the implementation of the regulations on the organization, process, rules, criteria and technical and economic norms concerning the exploitation and protection of the hydraulic works.

- To direct the prevention and fight against and the overcoming of the consequences of water logging, floods, storms and other emergency situations of the hydraulic works throughout the country;

- To control and inspect the implementation of the policies and regimens concerning the exploitation and protection of the hydraulic works;

- To exercise a number of rights of State ownership with regard to the Company for the exploitation of the hydraulic works under the management of the ministry according to Article 27 of the Law on State Enterprises.

Article 19.- The State managerial responsibility of the People's Committees in the provinces and cities directly under the Central Government consists of the following:

- To elaborate, submit for approval and organize the implementation of the planning, plans and investment projects to supplement, perfect and upgrade the system of hydraulic works in the locality according to the assignment of responsibilities by the Ministry of Agriculture and Rural Development;

- To organize the prevention and fight against and the overcoming of the consequences of water logging, droughts, floods storms and other incidents affecting the hydraulic works in their locality;

- To exercise a number of rights of State ownership with regard to the company exploiting the hydraulic work in the locality under its management as stipulated in Article 27 of the Law on State Enterprises.

Article 20.- The issue of permits for exploiting and protecting the hydraulic works is stipulated as follows:

1. The works which require a permit:

a/ To build supplementary constructions in the existing system of hydraulic works;

b/ To supply water from the system of hydraulic works to the urban areas, population centers, industrial centers and drain water from these areas into the system of hydraulic works.

c/ To conduct comprehensive exploitation of the utility of the hydraulic works such as: generating electricity, raising aquatic products, transportation and communication, tourism and other services which are not featured in the essential tasks of the hydraulic works already approved or if these organizations and individuals engaged in these works are not assigned any job in the task of designing the approved hydrraulic work.

d/ To use the land within the protection area of the hydraulic work.

2. Bases for consideration for permit issue: the following documents must serve as bases for the issue of permits:

a/ The legislation on land law and on the exploitation and protection of hydraulic works;

b/ The plan and the feasibility project of the system of hydraulic works already ratified by the competent State authority;

c/ The plan for the protection and the plan for the use of land within the protection area of the hydraulic work, the process of operating the system of the hydraulic works and the criteria for environmental protection already approved;

d/ The capability in capital, labor, equipment for management, the professional qualification of the organization and individual that wishes to exploit the hydraulic work.

3. Process and procedures for application for permit:

The organization and individual that wishes to exploit a hydraulic work must send an application together with the feasibility project and the written agreement of the company exploiting the hydraulic work to the agency with competence to issue permits as stipulated at Item 34 of this Article.

Within 30 days after receipt of the application the agency with competence to issue permits must answer to the applicant.

4. Competence in issuing permits:

a/ The Minister of Agriculture and Rural Development shall issue the permit or agree in writing that the President of the People's Committee of the province and city directly under the Central Government shall issue the permit in the cases stipulated at Sections b and c of Item 1 of this Article;

b/ The President of the People's Committee of the province or city directly under the Central Government shall within his authority issue the permit for land use within the protection area of the hydraulic work.

Article 21.- The permit issuing agency is entitled to withdraw the permit if the organization or individual that has been issued with the permit violates the legislation on the exploitation and protection of hydraulic works or does not comply with the terms under the permit.

Article 22.- The following ministries and services shall have to coordinate with the Ministry of Agriculture and Rural Development in the implementation of this Decree:

1. The Ministry of Industry shall coordinate action in working out the process for operating the hydraulic work in order to ensure the efficient and safe comprehensive exploitation of the hydraulic work.

2. The Ministry of Communication and Transport shall coordinate action in building, transforming and upgrading the communication works within the system of hydraulic works or shall exploit the existing hydraulic work for the purpose of communication in such a way as to ensure compatibility of the whole system of hydraulic works, safety for the work and not to interfere with the flow of the stream.

3. The Ministry of Building shall coordinate action in building the water supply and draining system for the urban areas, the population centers and the industrial areas lying within the system of hydraulic works in order to ensure compatibility with the planning and the process of operating the system of hydraulic works and prevent the pollution of the water environment.

4. The General Land Administration shall coordinate action and guide the elaboration of the plan for using land within the protection area of the hydraulic work.

5. The Ministry of Interior and the people's armed forces shall cooperate to prevent the acts of sabotage in order to ensure safety for the hydraulic works;

Chapter V

IMPLEMENTATION PROVISIONS

Article 23.- The organizations and individuals with meritorious deeds in the exploitation and protection of hydraulic works who detect and prevent the acts harmful to the hydraulic works and who seriously carry out the Ordinance on exploiting and protecting the hydraulic works and this Decree shall be commended and rewarded according to the common regulations

The persons who violate the Ordinance on the exploitation and protection of the hydraulic works and this Decree shall, depending on the character and extent of the violations and the consequences of these violations, be dealt with according to law.

Article 24.- The Minister of Agriculture and Rural Development and the concerned ministers and heads of the agencies shall, depending on their functions, guide the implementation of this Decree.

Article 25.- This Decree takes effect on the date of its signing. The earlier regulations contrary to this Decree are now annulled. The Ministers, the heads of ministerial-level agencies, the heads of the agencies attached to the Government, the Presidents of the People's Committees in the provinces and cities directly under the Central Government shall have to implement this Decree.

On behalf of the Government

The Prime Minister

VO VAN KIET